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Is An Unpaid Internship Legal?

by | Aug 18, 2022 | Employment Discrimination, Federal Law Update, Wage: Minimum Wage, Wage: Overtime |

What law protect my rights to overtime pay and minimum wage?

Best Wage Rights Lawyer Answer: The Fair Labor Standards Act (“FLSA”) is the federal law that protects non-exempt workers’ rights to be paid minimum wage and overtime pay at time and half for all hours worked in a given week over 40 hours per week. (Best Law Read: No Wage Violation Is Too Small To Pursue; What Can I Do If I’m Not Paid For All My Hours?; What Damages Can I Get For Wage Violations And Retaliation Under FLSA?). There are also laws in every state that provide wage protection to workers. And while the concept of wage requirements under the FLSA is quite simple – if an employee is paid less than minimum wage, there is a violation; or if an employee is not paid time and a half for all hours worked over 40 hours per week, there is a violation – the reality is that the FLSA is quite complicated. (Best Law Read: Must Employees Be Paid When On-Call?; Is My Manager Personally Liable For Overtime Violations?; What Can I Do If I’m Not Paid For All My Hours?; Is An Assistant Manager Exempt From Overtime Pay Requirements?).

The complexities of the FLSA as well as state overtime and minimum wage laws drives the need for employees to consult qualified wage theft attorneys; and also brings us to today’s blog topic.

Can employers not pay interns for their work?

Best Wage & Hour Attorney Answer: As always when dealing with laws and lawyers, the answer is that it depends on particular facts of the case. Let’s look at a recent example.

In McKay v. Miami-Dade County, 36 F.4th 1128 (11 Dist. 2022), a worker participated in the county’s well-known autopsy forensic photography training program. The Eleventh Circuit Court of Appeals took up the issues arising from the United State District Court for the Southern District of Florida and held the following: (1) the worker was not a ”volunteer” which is an exception to the FLSA’s minimum wage and overtime benefits but 2) the worker was an “intern” who was not employed by Miami-Dade County and was thus not entitled to the benefits afforded by the FLSA.

The court reasoned that McKay could not be considered a “volunteer” pursuant to the exception because the work was not “motivated by any civic, charitable or humanitarian reasons.” The county first asserted that McKay was a volunteer. The court disagreed. However, the court also held that McKay gained more benefit from her participation than the Miami-Dade forensic autopsy department and was not employed by the organization. Thus, she fell into the “intern” exception of the FLSA and was not entitled to be paid a wage.

The facts of the case are relatively straight-forward. McKay, decided to apply to Miami-Dade County’s well-regarded training program for autopsy forensic photography in lieu of going to college for the education. Once accepted, she was under the direct supervision of employees of the department and learned from the forensic professionals in the department for six-months. The plaintiff also clearly understood that she would not be paid and was not entitled to a job when the internship ended.

What is the exemption test for unpaid interns and students?

Best FLSA Lawyer Answer: Courts have used the “primary beneficiary test” to determine whether an intern or student is, in fact, an employee under the FLSA. See Walling v. Portland Terminal Co., 330 U.S. 148, 152-53 (1947); Solis v. Laurelbrook Sanitarium & Sch., Inc., 642 F.3d 518, 529 (6th Cir. 2011). This test allows courts to examine the “economic reality” of the intern-employer relationship to determine which party is the “primary beneficiary” of the relationship. Courts have identified the following seven broad factors as part of the test:

  1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa.
  2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.
  3. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
  4. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
  5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
  6. The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
  7. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.

Additionally, the ‘primary beneficiary test’ is designed to be flexible such that no single factor is determinative outcome. This brings us back full circle to the point that any determination of, whether an intern or student qualifies as an employee under the FLSA necessarily depends on the specific facts and circumstances of each situation. As such, the courts have discretion to construe the facts and weigh the items above as it relates to prior interpretations of the exceptions to the FLSA. So, as is many times the case in the law, and especially here where the factors are “flexible”, the answer to the query, ‘Is an unpaid internship legal?’ The answer remains, “it depends.”

What should I do if the company that I work for is not properly paying me overtime wages?

Best Ohio Wage Theft Attorney Answer: Get help from an attorney that has experience dealing with the FLSA, overtime, and minimum wage issues. The FLSA is tricky and complicated. Most lawyers – even many that do employment discrimination work –  have never dealt or have very limited experience with the FLSA, much less the complexities of the exemptions. If you believe that your employer is not paying you all of your wages for all of your lawfully earned overtime compensation at a rate of one and half times your normal wages as requires under the Federal Fair Labor Standards Act or similar state laws, such as Ohio Minimum Fair Wage Standards laws, or you are an nonexempt employee that has been misclassified as an intern or volunteer, contact the attorneys at Spitz, The Employee’s Law Firm today for a free and confidential initial consultation. The experienced wage and hour lawyers at Spitz will provide you with the top options for your overtime pay dispute situation. (Read: What is the Spitz No Fee Guarantee?) If you even think that you may be entitled to overtime pay that you are not being paid, call our Cleveland, Columbus, Cincinnati, Toledo, Boardman, Raleigh, and Detroit attorneys right now. Do not wait. The longer that you wait, the less that your claim may be worth.


The materials available at the top of this overtime, wage and hour web page and at this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “Am I entitled to overtime pay on my job?”, “Does my job have to pay me if I’m volunteering for a charitable organization”, “Do interns have to be paid for doing work beyond training” or “What do I do if I am not being paid time and a half for overtime hours”, your best option is to contact an experienced overtime attorney to obtain advice with respect to FLSA questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at the top of this page or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, Brian Spitz, or any individual attorney.

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